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The US actor Alfonso Ribeiro, who played Carlton Banks in the TV series “The Fresh Prince of Bel Air,” has sued the creators of the Fortnite video game in the Federal Court of Los Angeles (California), accusing them of misappropriating the famous dance he invented for his character in 1991. In doing so, he follows the footsteps of the rapper 2 Milly and Russell Horning, also known as the “Backpack Kid,” who have also sued the creators of the popular game for copyright infringement for using their dance steps.

The actor claims that Fortnite contains an option called the Fresh Dance that allows the characters of the game to perform a dance step that he created for the role of Carlton, Will Smith’s cousin in the TV series “The Fresh Prince of Bel Air.” For years now, this dance step has been popularized on the internet as a meme to express happiness. The dance, which tends to be accompanied by the song “It’s not unusual” by Tom Jones, is currently pending registration in the US Copyright Office.

Ribeiro, 2 Milly and Horning are claiming compensation for the revenues that Epic Games has earned from exploiting what they claim to be their intellectual property. However, what are the chances of success, considering that the right they seek to protect is a dance step? The US Copyright Office, in its Statement of Policy of June 18, 2012, establishes that “a selection, coordination, or arrangement of functional physical movements” does not meet the level of originality established by the American Copyright Act and, therefore, cannot be registered. The same statement also adds, however, that if the steps are organized as an integrated, coherent and expressive whole it could enjoy protection.

In Bikram’s Yoga College of India v. Evolation Yoga, the Ninth Circuit Court of Appeals held that a sequence of yoga poses and breathing exercises could not be protected under copyright law. According to this judgment, the sequence developed by Bikram Choudhury was an idea, process or system designed to improve health, rather than an expression of an idea. As the sequence was an unprotectable idea, it was also ineligible for copyright protection.

This series of cases against Fortnite could finally settle the position of the US courts regarding protection of dance steps under copyright law. The Copyright Office’s opinion could be tempered by the courts in light of the millions of dollars in revenue generated by the Fortnite game, which has been hailed as the most profitable free-to-play game in history.

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maria.pascualdapena@cuatrecasas.com

Graduada

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esther.ballesteros@cuatrecasas.com

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